A $64,000 question: Does the county have to disclose attorney fees to date? Counsel: Early release could lead to 'mischief,' would reveal strategy

Humboldt County is currently defending itself against a lawsuit that asks the question: Should a local government disclose how much it's spending on attorneys while a lawsuit is pending?

The Humboldt Coalition for Property Rights, which filed the lawsuit nearly one year ago, believes a recently published appellate court decision will force the county's hand. A Humboldt County judge granted the county a continuance last month to see if the California Supreme Court will weigh in on the appellate decision.

The county is defending its decision not to release to HumCPR the cost of retaining outside counsel in pending litigation. HumCPR is a private property rights organization, registered as a California corporation, which follows land use lawsuits in the county. It is also suing the county to stop the practice of shading parcels -- or marking properties with an uncertain legal status.

Humboldt County counsel claims that it is protecting the county under a valid exemption of the California Public Records Act, and argues in court documents that releasing the information could jeopardize pending litigation.

"Litigation strategy is revealed in the amounts expended to pursue or defend litigation," County Counsel Wendy Chaitin and Assistant County Counsel Carolyn Ruth wrote in reply to HumCPR's complaint. "Plaintiff and others will have ample opportunity to assess whether or not the county has been wise in using taxpayer money to litigate or defend itself when the results of the litigation are established."

Paul Nicholas Boylan, an attorney who specializes in government transparency and public records requests, said he advises governments to release attorney billing records.

"When it comes to attorney records, the law in California is not entirely clear," he said. "In my opinion, are they public records that should be disclosed? Yes."

Any information beyond the cost and date of services and the name of the attorney retained could be redacted to protect the case, he said.

Boylan did not agree with Humboldt County counsel's assertion that billing information would give away legal strategy.

"That's a really bad argument," he said. "The county is going to lose this litigation. It's going to be denied by any competent court."

HumCPR President Lee Ulansey said he filed a California Public Records Act request in December 2011 requesting information about pending litigation against the county related to land use, planning and the county's general plan update, including the costs of those suits.

In a complaint filed on behalf of HumCPR by Eureka attorney Allison Jackson, Jackson says Ulansey and HumCPR attempted to get the requested information seven times before filing a complaint for injunctive relief.

Jackson said the California Public Records Act, established in 1968, clearly shows the records should be released. She said exemptions to the law, designed to allow privacy in certain instances, are to be defined narrowly. The public's right to know is to be defined broadly.

"Every single case says that," Jackson said. "The burden is on the government to show the few exemptions that there are."

While officials declined to comment on the lawsuit, motions filed by the county argue the information should not be released because it could be used by individuals for "mischief," or to influence litigation.

"While it may be that Plaintiff is simply interested in good government, release of these records to Plaintiff is tantamount to release of the records to the world," the reply reads. "The potential mischief that could be done with this information -- by someone attempting to influence an election, perhaps, or to influence the course of the litigation -- is not far fetched or unduly speculative."

The county said costs of pending litigation could be taken out of context.

"How could anyone with preconceived notions possibly evaluate whether or not public money was 'wasted' on any particular litigation until the results of that litigation are known?" the county's reply reads. "The public entity would then be in a very difficult situation -- to either be perceived as indifferent to the costs of litigation or risk making a gift of public funds by entering into an unmerited and unfavorable settlement, or ending litigation prematurely at the urging of a vocal minority to the detriment of the public at large."

HumCPR said the county's arguments "fly in the face" of open government law.

Both sides have referred to previous cases in court documents. The county cited a court ruling out of Monterey County that found payment records to outside counsel did pertain to pending litigation, and therefore were exempt under the CPRA.

The Monterey County Superior Court decided that "the phrase, 'prepared for use in litigation,' is not to be construed as referring only to documents sought to be actually used at trial," Humboldt County counsel wrote.

HumCPR pointed to California appeals courts, which ruled in favor of disclosure in two similar cases last year.

A 2nd District Appellate Court ruling was published in December, meaning it sets legal precedent in the state.

The county of Los Angeles lost an attempt to overturn a Superior Court order to turn over counsel billing and payment records. That ruling was published Dec. 16, but Jackson wrote to Humboldt County on Nov. 16 when decisions had been made in both the 2nd and 4th district courts.

"Based on that opinion, I suggest that we resolve this matter and that you turn over the requested documents immediately," Jackson wrote. "Doing so will reduce additional attorney fee exposure to the County, which my client has tried to do all along. Currently my client's attorney fees and costs are total $64,439.51."

Boylan said that even without the appellate decision, Humboldt County counsel should release the billing records. If the state Supreme Court decides not to review the case, the county will have to release the requested records, as well as pay Jackson's fees.

"The irony here is that they will then be required to pay the petitioner's fees and costs," Boylan said. "And the more they fight, the more that will be."

"It's irresponsible to make a decision to hide this kind of information when the cost of failing is so high," he said.

Last month, a Humboldt County judge granted the county's motion to continue the case until March 6, pending Supreme Court review of the 2nd District Court's decision.

In a letter on the HumCPR matter, the county wrote that it no longer releases attorney billing information in pending litigation, despite doing so in the past.

"However, these records are exempt from disclosure pursuant to the Public Records Act and the practice of disclosure was stopped approximately two years ago," Ruth wrote.

It was around that time that a California Public Records Act request by Arcata resident Rondal Snodgrass found that the county has spent $2.1 million for outside legal aid and consultants up to June 2009 in a lawsuit involving Southern Humboldt County developer Bob McKee and the subdivision of the 13,700-acre Tooby Ranch.

Humboldt County spokesman Sean Quincey declined to comment on why the practice changed.

First District Supervisor Rex Bohn said the county complies with frequent requests for public documents.

"Transparency is the best thing in the world," he said. "We're doing the people's work."

Bohn said he believes withholding documents is valid when it could affect the outcome of a legal matter, and that county counsel knows best what practices will protect the county.

"That's why they went to school," Bohn said.

Third District Supervisor Mark Lovelace said unless a request is too broad or ill-defined -- or is legally protected from disclosure -- the county practice is to quickly release all requested documents.

College of the Redwoods political science professor Ryan Emenaker said the difficulty of the CPRA is balancing the public's right to know with the government's ability to get work done.

"Even the right to know has a long history," he said. "Sometimes, maybe not being exposed to the public eye might be useful."

Ulansey said the case is about the larger issue of government transparency when it comes to the way public funds are being spent.

"They just can't spend our money without telling us what they're spending it on," he said. "That's ridiculous."

Jackson said it has become more difficult to get information from the county over the last five years.

"You shouldn't have to get a lawyer each and every time you want information," she said. "That's not how this is supposed to work."

Jackson said the Board of Supervisors, discussing the lawsuit in closed session, should be asking its counsel if the costs of litigation are worth the costs of releasing information.

"I know that clients come into my office asking questions about how much money's being spent," she said.

Ulansey said he's been frustrated by the process.

"Even if it's bad information, the best policy is to disclose it, get it out there and people will deal with it," he said. "We are not talking national secrets here. The earth will not spin off its axis."

"It's most peoples' position to trust their lawyers," Ulansey said. "At some point, you have to look at the underlying issue of the lawsuit and go 'Well, is it worth it?'"